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- Family Law
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- The University Of Kent (UKC)
PQ template for a family law problem question scenario
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PQ OUTLINENB This is slightly more detailed than what we have done in class.
3. Ramya’s parents have arranged her marriage to Palvinder. Initially Ramya is happy
with the idea of an arranged marriage, but as the date draws closer and after meeting
Palvinder, she tells her parents she no longer wants to go through with the marriage.
Her parents are devastated and say that the shame of not going through with the
marriage will kill her father, who suffers from ill health. Ramya reluctantly agrees to
go ahead with the religious ceremony, which is arranged in the local Sikh temple.
While the temple is an ‘approved premises’ for marriages, the religious leader who
takes the ceremony – who is standing in for the usual religious leader – is not
licensed to conduct legal marriage ceremonies and he forgets to arrange for a
Registrar to be present. Neither does he advise the parties of the need to give official
notice of the marriage. Ramya and Palvinder are unaware of these legal requirements
and assume that the religious ceremony means that they are legally married.
Identify the issues in this problem and explain whether Ramya and Palvinder are
legally married.
The present PQ raises the following issues:
i) Whether the arrangement between Ramya and Palvinder may constitute a marriage;
if so, could it be rendered void or voidable?
• What is a marriage?
Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion
of all others…”
ii) Was marriage validly created?
In order for a valid marriage to be created both parties must have capacity to marry and
marriage must not fall foul of s11 MCA 1973 grounds.
• Re E (An Alleged Patient): since marriage is a voluntary union each party must
have capacity to consent – must understand the nature of the marriage. Nothing on the facts
suggests that Ramya does not understand the nature of the arrangement. She was also
initially happy to go through it.
iii) Is it a non-marriage or a marriage void ab initio? Apply s11 Matrimonial Causes Act 1973.
Usually failure to comply with formalities will result in the marriage being void but in some
circumstances the ceremony is a ‘complete non-event’ so it cannot amount to a marriage at
all. Whether it is a non-marriage or a void marriage will depend on the facts of the case. The
law in this area is highly unsatisfactory. I have included some cases that I did not mention in
class FYI.
s.11(a) a marriage is not valid under the provisions of the Marriage Act 1949-1986 for the
following reasons:
s11(a)(i) the parties are within the prohibited degree of relationship
, s11(a)(ii) either party is under sixteen
s11(a)(iii) the parties have married in disregard of certain formalities. – relevant
subsection.
Formalities in respect of the ceremony – the Marriage Act and the Government guidelines.
- In a registry office or premises approved pursuant to the Marriage Acts 1949.
- Registrar;
- Notice must also be given;
*Hudson v Leigh - ‘flexible test’ – questionable ceremonies will need to be addressed on a
case-by –case basis.
The test:
i) Whether the ceremony purported set out to be a lawful marriage;
ii) whether the ceremony set out bore the hallmarks of marriage;
iii) whether the key participants believed, intended or understood the ceremony as
giving rise to the status of lawful marriage;
iv) the reasonable perceptions of those in attendance, especially the official;
Gereis v Yagoub [1997] – valid marriage created, voided.
A couple went through a marriage ceremony at a Coptic Orthodox Church which was not
licensed for marriages. The ceremony conducted by a priest who was not licensed to
conduct marriages and also told the couple that there is a need for a civil ceremony to effect
a valid marriage. All those who attended also believed this to be a valid marriage. The court
decided that the arrangement was marriage.
Chief Adjudication Officer v Bath [2000] did not consider whether the marriage was void
or voidable as the spouse died. But was considered to be a valid marriage.
Undergone the religious ceremony in a Sikh Temple and lived together for 37 years. They
believed the ceremony was valid and were ignorant of the requirements of the Marriages
Act. They were assumed to be married because of long cohabitation (common law
presumption)
Ghandi v Patel [2002] – non-marriage.
Hindu marriage ceremony conducted by a Brahmin priest in a restaurant was held to be a
non-marriage.
Alfonso-Brown v Milwood [2006] non-marriage.
A party took place in Ghana. The court held that the parties lacked intent and considered it
to be merely an engagement party.
El Gamal v Al Maktoum [2011] non-marriage.
Parties underwent religious marriage in a flat. Conducted by Imam, but there was no
evidence of the marriage taking place.
The wife argued that intention to marry converted non-marriage into a valid but void
marriage. Bodey J disagreed and ruled that “while intention is relevant… it would be wrong
to decide this is a valid marriage where no effort has been made to comply with the Marriage
Act”
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